y* 0ST ** 

\^\^ J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

\ PRO^ REGION 1 

5 Post Office Square, Suite 100 

Boston, MA 02109-3912 

Superfund ^cord s Cenler ~ 

BREAK: JL- — 

Memorandum OTHER: _ S^lll V 

Date: August 4, 2011 

Subject: New Bedford Harbor MassDEP Request to Include South Terminal in 

Enhancement - Proposed Mitigation Plan for Shellfish 

To: Gary Davis, General Counsel 

Executive Office of Energy and Environmental Affairs 

From: Matt Schweisberg, Chief:—VLM 

Wetlands Protection Unit /^ 

This memorandum provides EPA's response to the shellfish mitigation proposal included in 

MassDEP's proposed mitigation plan submitted to EPA on March IT, 2011 and further 

supplemented by a memorandum dated July 25, 2011 to Matt Scnweisberg and Phil Colarusso of 

EPA from the Massachusetts Division of Marine Fisheries ("DMF memo"). This memorandum 

supplements EPA's prior comments provided to MassDEP in June of this year on the proposed 

compensatory mitigation plan. After reviewingall relevant documents, EPA will not accept a 

shellfish mitigation proposal that includes transplanting any shellfish from the inner harbor to 

any area below the hurricane barrier in New Bedford Harbor (Option No. 1 in the DMF memo). 

As set out more fully below, EPA will consider transplanting shellfish within areas inside the 

hurricane, barrier or, if demonstrated that there is insufficient area for such transplanting, a 

combination of transplanting within the hurricane barrier and seeding below the barrier (Options 

2 and 3 in the DMF memo). 

EPA recognizes that the impacted shellfish are located in contaminated sediment and that state 

and federal prohibitions against harvesting and consumption of shellfish from the inner harbor 

are in place. At the same time, as a protected resource, EPA believes shellfish are an important 

part ofthe Harbor ecosystem and measures should be taken to preserve rather than destroy the 

over two million impacted shellfish to the extent practicable. Preservation ensures a continuation 

of diversity of species in the Harbor and Buzzards Bay. Quahogs and other shellfish filter large 

volumes of water, removing some contaminants during the course of their normal feeding. 

These filter feeders, when present in sufficient numbers, have the ability to control algal blooms 

that result from enrichment of our coastal waters from excess nutrients. 

SDMS DocID 509555 
For the reasons set out below, EPA.will;not acceptashellfish mitigation proposal that includes 

transplanting any shellfish from the inner harbor to any area below the hurricane barrier (Option 

1 in the DMF memo): 

••'%.:

:

The,New. Bedford Harbor Superfund Site cleanup goal for PCBs in seafood is 0.02 ppm 

PCBs. This is a site specific risk-based concentration based on a cancer risk of 1 x 10"5' 

afTd"a"non=cancer hazard index of 1 which is applicable to recreationally caught seafood. 

The Food and Drug Administration (FDA) tolerance level of 2 ppm PCBs in fish tissue is 

applicable to commercial fishing, and reflects a market basket approach which assumes, 

people eat a variety of fish from a variety of places, purchased at their local market. A 

PCB level of 2 ppm is not sufficient to protect people who regularly eat fish from New 

Bedford Harbor. 

2. The site specific long-term seafood monitoring program, performed by MassDEP (with 

assistance from DMF in collecting and preparing^annual seafood reports) on behalf of 

EPA, specifically shows that PCB depuration rates in shellfish appears tb^bB Very low arid 

has sometimes shown that post-spawn PCB concentrations are higher than pre-spawn 

PCB levels in the same areas tested. 

3. Massachusetts Department of Public Health (MAEiPH) and MassDEP, Bureau of Waste 

Site Cleanup, do not support transplantingshellfish outside of Area 1 (that is, abovethe 

hurricane barrier). See Attachment 1, letter dated February 15, 2007 frombPHto 

NOAA. 

4. MADPH has promulgated a fishing ban thatprohibits taking of shellfish from Area 1 

(105CMR 260,005). Seeattachjrnentto Attachment A, 

5. EPA's 1998 Record of Decision for the Supeffundcleahup'of New Bedford" Harbor 

("1998 ROD") (page 33) requires implementing institutional controls' that prohibit the 

taking of seafoodin Area 1 as well as providing seafood'adyisories for all areas of the 

Superfund Site (Areas I, II and III), posting no fishing sighs'and engaging;iHv

eduGatiGnal 

campaigns.. See Attachment B for EPA's seafood advisories. They may also be found;;oh 

EPA's website at: http://\vwvv•epa•gov/nbh/seafo'o^d•html^. EPA andI MADPH recently 

updated the warnings to reflect the most recent results of the Iprig-tenri seafood 

monitoringprogram. It .should "also be rioted that EPA's advisoriesTeflect more stringent 

limitations on fish consumption than those'contained in the state fishing ban. 

6. Violation of EPA's institutional^^ confrols, required'by the 1998 ROD, vyill jeopardize the 

profectiveness of the remedy. 

7. EPA's five-year reviews (2005,and 2010) require ongoing.institutional controls to ensure 

remedy protect!veness. The 2010 five year review,requires that EPA fish consumption 

advisories be.included in a)l shellfish aridfinfish'lice^hses issued.in N^ 

Acushriet, Fairhaven arid Dartrriputh. italso requires that -medical'grafted[roundsbe 

facilitated to inform the medical, community of these dangers andask that they pass 

iirifpimatipn onto to patients. 

8. The site educational outreach also includes an educational program that; is;now 

incorporated into the New Bedford schoorcurriculufri. 

1

 The cancer risk of 1. x 10'5 was selected.in the ROD be consistent with PvtADEP 2IE program cancer risk; EPA:?s 

normal point of departure for human health of 1 x, 10'6, 
EPA supports transplanting shellfish within the inner harbor (Option 2 in the DMF memo). EPA 

will also consider a mitigation proposal that includes both transplanting shellfish within the inner 

harbor and a seeding program (Options 2 and 3 in the DMF memo) only after MassDEP 

demonstrates, through field investigation work, that there is insufficient suitable habitat in the 

inner harbor for this amount of shellfish. If EPA agrees that only a portion ofthe affected 

shellfish can be safely transplanted within the inner harbor, it will work with MassDEP to create 

a sound seeding program as mitigation for the remainder ofthe impacted shellfish. 

If you have any questions, please contact me at 617-918-1628 or Elaine Stanley at 617-918­

1332. 

cc: Kathryn Ford, Mike Hickey, Tom Shields, MassDMF 

Jay Borkland, Chet Myers, Apex 

Carl Dierker, Jim Owens, Phil Colarusso, Elaine Stanley, EPA 
The Commonwealth of Massachusetts 

Executive Office of Health and Human Services 

Department of Public Health 

250 Washington Street, Boston, MA 02108-4619 

^S&SS?6* Office of the General Counsel 

TIMOTHY P. MURRAY

LIEUTENANT GOVERNOR

 Second Floor (617) V

 ' 

 624-5220 

JUDYANN BIGBY, MD 

SECRETARY 

PAULJ.COTE.JR . 

COMMISSIONER 

- February 15, 2007 

Mr. Jack Terrill 

New Bedford Harbor NRD Trustee Coordinator 

NOAA - New England Region Management Division 

One Blackburn Drive 

Gloucester, MA 01930 

Dear Mr. Terrill: 

(^7 The Massachusetts Department of Public Health (MDPH), Center for Environmental 

Health (CEH), in coordination with the Massachusetts Department of Environmental 

Protection (MDEP), has been asked to review the 2005 Shellfish Restoration Statement 

of Work and Budget prepared by the Regional Shellfish Restoration Committee on behalf 

ofthe Towns of Dartmouth and Fairhaven and the City of New Bedford. The proposed 

regional shellfish restoration work in New Bedford Harbor has been submitted to the 

New Bedford Harbor Trustee Council. 

CEH staff, in consultation with the MDPH Office of General Counsel, has reviewed the 

proposed restoration work to detennine whether the proposed restoration project might 

pose an unacceptable risk to public health and whether it might conflict with MDPH 

regulations governing the taking offish and shellfish in New Bedford Harbor. Based 

upon this review and for the following reasons, MDPH does have concerns about certain 

parts of this restoration project. 

Among the many goals ofthe New Bedford Area Shellfish Restoration Project, the 

proposal that concerns MDPH the most is the plan to relocate shellfish from Area I to 

Area fl. These areas are defmed in Section 260.005(4) ofthe MDPH regulations entitled 

Prohibition Against Certain Fishing in New Bedford Harbor (105 CMR 260.000). A 

copy of these regulations is attached. 

^ v These regulations impose restrictions on the taking offish and/or shellfish in each ofthe 

\£ ) three areas of New Bedford Harbor. This restoration project is subject to these regulatory 
restrictions. Specifically, 105 CMR 260.005(1) prohibits any taking or selling of any fish 

o (except bait fish), lobster or shellfish from Area I. The MDPH Food Protection Program 

considers a "taking" to be any capturing or harvesting offish or shellfish, even for the 

purpose of relocating. Therefore, the relocation of shellfish from Area I to Area II would 

violate these regulatory restrictions. 

In addition to concerns about the restoration plan violating MDPH regulations, CEH 

believes that the findings ofthe Greater New Bedford Health Effects Study (GNBHES), 

released in 1987, clearly demonstrated a relationship between consumption offish caught 

from the closure areas and higher serum PCB levels. In New Bedford, approximately 50 

percent offish eaters who ate fish from closed areas ofthe harbor had serum PCB levels 

in the range of 9-15.5 parts per billion (ppb) compared to mean prevalence estimates in 

the general population of approximately 6 ppb. Since the time of our study (1984-1987), 

research indicates that health effects are of concern at even lower serum PCB levels (e.g., 

in the 2-6 ppb range) than what was known in the mid-1980s, thereby supporting great 

caution with respect to harvesting fish or shellfish from the closure areas. 

We appreciate the opportunity to comment on this New Bedford Harbor Restoration Plan. 

If you have any questions regarding this letter, please contact me at 617-624-5220. ' 

Sincerely, 

James Ballin 

Deputy General Counsel 

Enclosure: 105 CMR 260.000 

Cc: Suzanne Condon, Associate Commissioner, MDPH-CEH 

•Martha Steele, Deputy Director, MDPH-CEH 

o 
105 CMR: DEPARTMENT OF PUBLIC HEALTH 

105 CMR 260.000: PROHIBITION AGAINST CERTAIN FISHING IN NEW BEDFORD 

HARBOR 

Section 

260.001: Findings and Purpose 

260.002: Emergency Promulgation 

260.003: Authority 

260.004: Adulterated Fish 

260.005: Taking and/or Sale of Lobsters, and Certain Fish Prohibited 

260.001: Findings and Purpose 

The chemical susbstances known as polychlorinated biphcnyls (PCBs) have been 

discharged into the Acushnet River and are present in that river and in the New Bedford 

Harbor. Laboratory analyses of lobster and bottom-feeding fish caught in this area have 

revealed that PCBs are present in these food sources in levels that exceed the current 

maximum allowable levels (or "temporary tolerance") established by the Federal Food and 

Drug Administration under the Food and Drug Cosmetic Act, 21 U.S.C. 301, § 346. 

Consumption of PCBs causes diseases deemed dangerous to the public health, namely PCB 

intoxication and carcinogenesis. 105 CMR 260.000 are promulgated to prevent and control 

the incidence of such diseases among members of the general public, and to prevent the sale 

of adulterated food to the public. 

260.002: Emergency Promulgation 

PCBs settle to the floor of the body of water into which they are discharged; they may 

remain there for decades. Because lobsters and certain fish are bottom-feeders, they take in 

PCBs which remain in their bodies in anacceptably high concentrations. These food sources 

are currently being taken from contaminated areas (as described in 105 CMR 260.005) for 

primarily recreational and other noncommercial purposes and are being consumed by the 

public. Consumption of these food sources by humans poses an immediate and lasting threat 

to health. Further public consumption of these overly-contaminated food sources must be 

avoided by immediately preventing the taking, sale, and thereby the eating of such food 

sources caught in the contaminated area. Immediate adoption of 105 CMR 260.000 is 

necessary for the preservation of the public health; observance of the requirements of notice 

and public hearing, generally required under the first paragraph of M.G.L. c. 30A, § 2 prior 

to the promulgation of regulations, would be, in this situation, contrary to the public interest 

260.003: Authority 

103 CMR 260.000 is promulgated under authority of M.GX. c. 111, § 5 and 6, M.G.L. 

c. 94. § 186 and 192. M.G.L. c. 30A. § 2. 

260.004: Adulterated Fish 

Fish, containing levels of PCBs exceeding the maximum allowable level (or "temporary 

tolerance") of PCBs established by the Federal Food and Drug Administration for the edible 

portion of such food sources are adultered within the meaning of M.G.L. c. 94, § 186, first 

paragraph under food. Such food sources caught in the contaminated area are presumed to 

be contaminated. 

260.005: Taking and/or Sale of Lobsters and Certain Fish Prohibited 

(1) No person shall take and/or sell any fish (except bait fish), lobster or shellfish from the 

area of New Bedford Harbor (Area I) described below: 

The waters north of the Hurricane Dyke in New Bedford Harbor. 

4/1/94 105 CMR - 1261 
o 

105 CMR: DEPARTMENT OF PUBLIC HEALTH 

260.005: continued 

(2) No person shall take and/or sell any lobster or bottom feeding fish (including eels, scup, 

flounder and tautog) from the area of New Bedford Harbor (Area II) described in 105 CMR 

260.005(4): 

The waters generally south of area I and north of a line extending from Ricketsonls 

Point in South Dartmouth westerly to Wilbur Point on Sconticut Neck. • 

(3) No person shall take and/or sell lobsters from the area of New Bedford Harbor (Area IH) 

described in 105 CMR 260.005(4): 

The waters generally south of area II and north of a line extending from Mishaum 

Point on Smith Neck in the town of Dartmouth north and west to Gong "3" on Hursett 

Rock off New Bedford Harbor and continuous north and west to Rocky Point on West 

Island in the town of Fairhaven. 

(4) Map of New Bedford Harbor Outlining Areas I. II and HI 

- . •*: -j?-*•*-•% y y 

- V • • y-*!*:--'• 

••- . ! - " * & & * * 

o REGULATORY AUTHORITY ( 

105 CMR 260.000: M.G.L. c. 30A. § 2; M.GJL c. 111. §§ 5 and 6: M.G.L. c. 94. § i«6 

and 192. 

4/1/94 105 CMR - 1262 
UPDAT E O N FISH/SHELLFIS H TESTIN G 

SUPERFUN D 

New Bedford Harbor New Bedford, MA 

U.S . EPA | HAZARDOU S WAST E PROGRA M A T EP A NE W ENGLAN D 

T H E SUPERFUN D PROGRA M protects human health 

and the environment by investigating and cleaning up often-abandoned 

hazardous waste sites and engaging communities throughout the process. 

Many of these sites are complex and need long-term cleanup actions. 

Those responsible for contamination are held liable for cleanup costs. 

EPA strives to return previously contaminated land and groundwater 

to productive use. 

SIT E DESCRIPTION : 

The U.S, EPA has been committed to the New Bedford Harbor (NBH) cleanup since the 1980s, following discovery of 

polychlorinated biphenyls (PCBs) in sediment and fish and designation to the national priority list of Superfund sites in 

1983, In 1998, EPA proposed a dredging remedy for the Upper and Lower harbors, and full scale dredging started in 

2004, Remediation is ongoing, with dredging typically occurring in the summer. In 2009, EPA Administrator Lisa Jackson 

announced the availability of recovery act funds to help speed up the current cleanup timeframe for the harbor cleanup. 

PARTNERIN G 

As part of the NBH site monitoring, the Massachusetts 

Department of Environmental Protection has conducted 

annual fish and shellfish sampling to determine whether 

PCB concentrations in NBH fish and shellfish are declining 

as a result of cleanup activities. In general, PCB concentrations have indeed decreased from the 1980s to the present in most species, although concerns remain as discussed 

herein. Fish and shellfish sampling will continue throughout 

the cleanup efforts, and updates to this fact sheet will be 

issued as appropriate. 

ASSESSMEN T 

The Massachusetts Department of Public Health (MDPH) 

has also had extensive involvement with NBH in order 

to address a variety of health concerns. In 1979, MDPH 

promulgated state regulations prohibiting the consumption of any fish/shellfish in Area 1 of NBH: of bottom 

feeding fish (eel, scup. flounder, and tautog) or lobster in 

Area 2; and lobster in Area 3 (see attached map). These 

early efforts were followed by human epidemiological 

studies of PCB exposure via fish consumption by MDPH 

and others. MDPH has additional advice for sensitive 

populations (pregnant women, nursing mothers, children 

under age 12, women who may become pregnant) that 

can be found at www.mass.gov/dph/fishadvisories. EPA 

supports this additional advice, and notes that its updated risk assessment (discussed below) recommends that 

sensitive populations avoid fish, shellfish and lobster from 

the three closure areas in NBH (see map on reverse) 

except that shellfish from Area 3 and Clark's cove may 

safely be consumed by these sensitive populations if limited to one meal per month. 

RECOMMENDATION S 

As part ofthe Superfund process, EPA is required to conduct risk assessments that will result in cleanup levels that 

the selected remedy for a given site must meet. These 

risk assessments use conservative (health-protective) assumptions to ensure that even sensitive populations will 

not have health concerns following completion of remediation activities. In the case of NBH and the risk assessment conducted on fish/shellfish in the closed areas of 

the harbor, EPAs updated evaluation indicates that some 

species not currently covered by the 1979 state regulations may present health concerns for recreational fishermen and shell fishermen (and/or their families/friends 

who consume their take) if these species are consumed 

in larger quantities than current epidemiological data 

continued on next page > 

K E Y CONTACTS : 

JEANETH E FALVE Y 

U.S. EPA Community 

Involvement Coordinator 

(617) 918-1020 

falvey.jeanethe@epa.gov 

KELSEY O'NEI L 

U.S. EPA Community 

Involvement Coordinator 

(617) 918-1799 

oneil.kelsey@epa.gov 

JOSEP H COYN E 

MassDEP 

(617) 348-4066 

Joseph, coyne@state.ma. us 

GENERA L INFO : 

EPA NE W ENGLAN D 

5 Post Office Sq,, 

Suite 100 

Boston, MA 02109-3912 

TOLL-FRE E 

CUSTOME R SERVIC E 

1-888-EPA-7341 

LEAR N MOR E AT ; 

www.epa.gov/nbh 

United States January 2011 &ERM Environmental Protection 

k Agency 

I printed on 100% recycled paper, wilh a minimum of 50% post-consumer waste, using vegetable-based inks 
Updated 2010 EPA Recommendations for Recreational Fishermen/Shellfishermen 

Original Fishing Ban (in effect 1979-present) 

per Superfund Risk Assessment with additional species highlighted* 

per Massachusetts Department of Public Health 

'sensitive populations-sec reverse for more information 

New Bedford » Acushnet-

® Do NOT eat shellfish Do NOT eat fish Do NOT eat lobster 

No coma mariscos No coma pescado No coma langosta 

Nao coma mariscos • Nao coma peixe Nao coma lagosta 

continued from front » suggest. EPA believes it is important that recreational fishermen and shell-fishermen be aware that the risk assessment suggests 

that: consumption of black sea bass be limited to one meal per month if they are obtained in Areas 2 and 3; that scup not be consumed from Areas 2 or 

3; and that general guidelines for shellfish include limiting consumption to one meal a month in Area 2 (one meal per week in Clark's Cove). See map above 

for a summary of EPAs recommendations. 

Do NOT eat bottom feeding fish: 

No coma pescado de fondo: 

Nao coma peixe de fundo: 

• flounder 'tautog 

•lenguado «tautoga 

• solha «bodiao da ostra 

• scup •eel 

• sargo •angulla 

• sargo •anguila 

It is important to recognize the substantial benefits offish consumption for everyone. Fish is one ofthe best sources of fatty acids which are helpful in 

reducing the risk of heart disease. In order to avoid exposure to a harmful level of contaminants, people should choose a variety offish and shellfish from &EPA a variety of sources.